The Greening of Buildings

Babylon Town's adoption of an environmentally friendly building code has virtues, but could scare off potential development

By Stephen T. Del Percio, Esq.

At first blush, it seems Babylon did the right thing by enacting a new building code that town officials say is among the greenest in the nation.

Buildings have a staggering, yet relatively unnoticed, impact on the natural environment in our country. The U.S. construction industry, for example, is responsible for only 8 percent of our gross domestic product, but accounts for more than 40 percent of the total materials harvested from the environment each year.

Industry sources say commercial and residential buildings in the United States consume more than 62 percent of electricity, 36 percent of total oil and gas, and contribute 30 percent of greenhouse gas emissions. Buildings also create 2.8 pounds of demolition and construction waste each year for every American. If we're serious about ameliorating the degradation of our natural environment, it's imperative that something change about the way we design and construct our buildings.

Recently, it has become popular for municipalities such as Babylon to incorporate green building rating systems into their local building codes, most commonly a rating system devised by the U.S. Green Building Council, a Washington D.C.-based nonprofit organization established in 1993 to encourage green design. Building codes generally exist to specify a minimum level of safety for structures, including buildings.

How could anyone argue against municipalities fighting global climate change, which Al Gore has couched as a moral issue, through local legislation? Yet, officials do need to think about leaping onto this particular bandwagon because green codes in their current form pose risks to the design, construction and real estate industries that have yet to be thoroughly explored. Localities may place themselves at a serious economic disadvantage over the long run if these industries resist the requirements placed on them by green building codes.

The green rating system, called LEED (Leadership in Energy and Environmental Design) was established by the Green Building Council in 2000 as a voluntary and market-driven national standard for developing environmentally friendly buildings. It now provides standards specific to new construction, commercial interiors and existing buildings, with additional systems on the way for homes, neighborhood development and schools.

Under LEED for New Construction, Version 2.2, the subject of Babylon's new code, a project can earn as many as 69 points for green design elements in various categories. The materials resource category, for example, awards one point if a project recycles a certain percentage of its construction debris (rather than sending it to a landfill). Other credit categories include energy and water efficiency, sustainable site planning (such as placing buildings near mass transit) and indoor environmental air quality.

The project team - owner, contractor, engineer and architect - submits supporting documentation to the council. If it approves a minimum of 26 points, the project becomes LEED Certified. Silver, Gold and Platinum status is earned at 33, 39 and 52 points, respectively.

But, since the introduction of LEED standards, construction industry professionals have voiced consistent criticisms of various aspects of the rating system. Many owners balk at paying what amounts to a premium per square foot for the significant costs in securing certification (a minimum of $35,000 per project), and builders and architects complain about the lengthy bureaucratic process for evaluating applications.

Others claim that LEED does not deliver buildings performing at a significantly higher level than conventional buildings in terms of energy efficiency.

If a building doesn't conserve significant energy, how green can it really be? The council says only 25 LEED Platinum buildings have been certified in the United States. Overall, since 2000, only about 700 buildings have been certified while 4,000 applications await a decision. This isn't to say that LEED hasn't been a useful tool for the green building movement; it has. Certification takes a long time because the technical requirements that LEED imposes are rigorous. LEED has raised awareness about green building and given the industry a branded goal, and delivers a level of uniformity across buildings claiming to be green. It has undoubtedly been a major factor in the green transformation of the construction industry since 2000, and the concepts of green building and sustainable architecture owe LEED standards a major debt.

Most municipalities that have incorporated LEED into their building codes have applied it strictly to projects receiving public funding. For example, Suffolk County now requires all new construction or major renovation projects at the Department of Public Works to achieve a rating of LEED Certified.

New York City's Local Law 86, which became effective Jan.1, requires LEED Silver for most public projects. Building Design & Construction magazine says Babylon is only the 10th municipality in the country to require LEED certification for private development. As of Dec. 20, 2007, all new Babylon commercial, industrial and multi-unit residential construction projects greater than 4,000 square feet must be at least LEED-Certified to obtain a certificate of occupancy.

Although Babylon's green legislation is certainly a positive development in continuing to attract attention to the movement and disseminating green building practices across the Long Island construction industry, there are potential risks associated with local building codes that mandate private compliance with LEED.

First, LEED's state of flux raises questions. Babylon's legislation not only incorporates LEED but "automatically adopts any future versions promulgated" by the council. The town has effectively handed the keys to its local building code to a third party over which it exercises zero oversight. Babylon's building code is now effectively subject to modification at any time, at the whim of the council.

In fact, the very structure of LEED itself has gone through four stages since its introduction in 2000. The organization is now planning a comprehensive overhaul of LEED, dubbed the Bookshelf System, which will supposedly unify the various individual rating systems into one centralized location from which every type of construction project can pull applicable points as it pursues certification.

Second, how will Babylon deal with private owners whose projects do not meet the requisite certification level? Would such owners in turn look to their respective design teams for some kind of recovery? Will the town provide any appeals mechanism through which owners can protest LEED points denied by the council? Such uncertainty could create an additional layer of transaction cost for builders, making them even more likely not to develop in Babylon and costing the town untold dollars in property tax revenue.

Perhaps the criticisms the construction industry has leveled at LEED are among the reasons Babylon is the first municipality in the Northeast to require LEED certification for private projects. If municipalities are serious about environmentalism, the best way to encourage green building practices remains dangling financial incentives in front of private developers and property owners who choose to go green. These could include floor-area bonuses under existing zoning ordinances, expedited review of building permits, or various tax credits or rebates.

Giving an owner the opportunity to collect rent, for example, on a whole additional floor over the course of a building's lifetime is a powerful way of encouraging innovative green design. Fast-tracking permits is also an extremely useful tool - the quicker the building gets out of the ground, the faster the owner can start collecting rent and paying off its construction debt.

Municipalities similar in size and resources to Babylon would be wise to consider all their options on green building standards before legislating themselves into any particular rating system. Otherwise, they may find themselves confronting one of the many issues that could result from waving the LEED stick, issues that may be on the horizon for Babylon in the not-too-distant future.

Reprinted with permission from New York Newsday.

MARCH 2007